Charter of Rights and Freedoms

Significance: Promulgated by the government of Prime Minister Pierre Trudeau and signed in 1982 by Queen Elizabeth II, the Canadian Charter of Rights and Freedoms quickly attained the distinction of being one of the world’s most significant human rights documents. From the day it came into effect, April 17, 1982, the charter became the subject of intense discussion, analysis, and critique and subsequently was the focus of Supreme Court decisions that sought to interpret and clarify the meaning of its various clauses.

The Charter of Rights and Freedoms guarantees every Canadian fundamental freedoms—freedoms of conscience and religion, thought, belief, opinion and expression (including freedom of the press), and peaceful assembly and association. Members of visible minorities and other groups in Canada have a constitutional assurance and guarantee of their fundamental, basic rights. The rights and freedoms are, however, subject to reasonable limits, and justifiable in a democratic society. The scope of the charter is broad because it was framed to provide a means of protection against the incursions of the state and to defend the rights of minorities against the dominance of the majority. The charter deals with democracy, equality, gender, legal, and language rights.

History

Although the government of Canada adopted the British parliamentary system, many people felt that Britain’s emphasis on an “unwritten” constitution was not entirely appropriate in the Canadian context. Proponents of the charter preferred the system formulated in the United States, with its written constitution and the right of an independent judiciary to review the actions of the government. The Canadian Charter was an attempt to blend these two disparate democratic traditions while creating a dynamic document that could set the standard and provide clear guidelines for everyone in Canada. The most important of the charter’s many contributions is that it enables the Supreme Court of Canada to rule on the validity of legislative action and oversee compliance with the human rights system established by the charter. However, it must also be emphasized that most of the rights that fall within the charter were previously protected via the British tradition of common law and by provincial and federal statute law as well as by Canada’s adherence to the democratic concept of the rule of law.

The charter was necessitated by a need for unequivocal, written guarantees of human rights that were absent in earlier constitutional documents such as the British North America Act of 1867 (also called the Constitution Act). Although the earlier document assured Canadians of the rule of law and parliamentary supremacy, it made no specific provision for the protection of human rights except to grant provinces the power to legislate property and civil rights. It did protect some linguistic and religious educational rights, but the courts did not have the effective mandate they needed to protect all Canadians in a rapidly expanding multicultural, multiethnic society.

Prime Minister John Diefenbaker sought a remedy with passage by Parliament of the Bill of Rights (1960), which assured fundamental freedoms in matters falling within the jurisdiction of the federal government. This legislation also prohibited discrimination on the basis of race, national origin, color, religion, and sex. However, this act did not enjoy the supremacy of constitutional status, and clearly, the judiciary felt a need for further tightening of the human rights guarantees in Canada because it interpreted the act narrowly. Ironically, it was the enshrined British concept of parliamentary supremacy that hampered the development of a vibrant nationwide human rights system in Canada because the courts felt compelled to maintain legislative predominance, even at the expense of human rights.

The passage of the Canadian Charter in 1982 provided the necessary constitutional foundation and legal underpinning to the entire system of human rights in Canada. Any law that is not compatible with the charter is invalid. The Canadian constitution precedes parliamentary supremacy, and the charter binds both federal and provincial governments.

International Interest in Human Rights

Following the end of World War II and the creation of the United Nations in 1945 as a forum for the resolution of international disputes, the issue of human rights acquired prominence and urgency. The extent of the human rights violations by Nazis against Jews and other minorities shocked people throughout the world and gave impetus to the creation of international treaties to protect and expand the realm of human rights. The Universal Declaration of Human Rights (1948) led the way, soon followed by the International Covenant on Civil and Political Rights (1966), an Optional Protocol to the Covenant (1966), and the International Covenant on Economic, Social, and Cultural Rights (1966). Canada played a significant role in the development of these international documents, which are known collectively as the International Bill of Human Rights.

Specific Provisions

Although most of the provisions of the Canadian Charter are significant to members of any racial group, particularly the visible minorities, there are specific measures that are most relevant to the concerns of racial minorities. Section 15 guarantees equality, and Section 27 protects the multicultural composition of Canadian society. Hence, discrimination is prohibited and cultural diversity is endorsed.

Section 15 guarantees equality before and under the law along with equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, color, religion, sex, age, and mental or physical disability. It also provides recognition for proactive programs to help the disadvantaged.

Andrews v. Law Society of British Columbia (1989) confined “discrimination” to the criteria established in Section 15 (such as race and color) or on analogous grounds. Further, the Supreme Court of Canada found in R. v. Genereux (1992) that to qualify, discrimination had to be against a member of a “discrete and insular minority.” In Vriend v. Alberta (1998), the Court confirmed that sexual orientation is a prohibited ground of discrimination under the Charter, despite it not being explicitly listed. In Benner v. Canada (Secretary of State) (1997), the Court invalidated legislative provisions that granted or refused citizenship to children born abroad based on whether they had Canadian fathers or Canadian mothers and nullified the discriminatory treatment given to such applicants.

The extent of protection accorded by the Charter to racial and ethnic minorities is extensive. However, establishing racial equality in Canada will require more than constitutional formulations. The ultimate challenge will be for community organizations, legislators, the media, and, when necessary, the courts to educate people and help spread a spirit of racial tolerance and recognition of the value of diversity to all sectors of the country.

Bibliography

Canadian Human Rights Foundation. Multiculturalism and the Charter: A Legal Perspective. Carswell, 1987.

Clément, Dominique. Canada's Rights Revolution: Social Movements and Social Change, 1937-82. University of British Columbia Press, 2008.

Douglas, Kristen, and Mollie Dunsmuir. Charter of Rights and Freedoms: Fundamental Freedoms. Library of Parliament, 1996.

"Example of Charter-related Cases." Government of Canada, www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/cases.html. Accessed 7 Nov. 2024.

Fogarty, Kenneth. Equality Rights and Their Limitations in the Charter. Carswell, 1987.

Yalden, Max. Transforming Rights: Reflections from the Front Lines. University of Toronto Press, 2009.